FIU Law Review Volume 10 Number 2 Article 14 Spring 2015 Sifting Through the Theories: Uncovering the Truth in Foreign Aviation Disasters and Evaluating the Case Steven C. Marks Podhurst Orseck, P.A Follow this and additional works at: https://ecollections.law.fiu.edu/lawreview Part of the Other Law Commons Online ISSN: 2643-7759 Recommended Citation Steven C. Marks, Sifting Through the Theories: Uncovering the Truth in Foreign Aviation Disasters and Evaluating the Case, 10 FIU L. Rev. 571 (2015). DOI: https://dx.doi.org/10.25148/lawrev.10.2.14 This Article is brought to you for free and open access by eCollections. It has been accepted for inclusion in FIU Law Review by an authorized editor of eCollections. For more information, please contact [email protected]. 11 - MARKS_FINAL_1.4.DOCX (DO NOT DELETE) 3/1/16 2:52 PM Sifting Through the Theories: Uncovering the Truth in Foreign Aviation Disasters and Evaluating the Case Steven C. Marks* I. INTRODUCTION A plaintiff’s path to resolution in foreign aviation disasters comes with unique challenges and pitfalls that even the most experienced litigator may not anticipate. Successfully litigating foreign aviation cases requires as much determination as it does specialized know-how and diligent preparation. Because of the extraordinary expense involved in financing an aviation case, it is imperative to analyze the cases from a bird’s-eye view to anticipate the challenges and avoid the all-too-common pitfalls ahead. This paper provides insight into how an aviation practitioner prepares and evaluates a foreign aviation case, and also provides a pre-trial road map to resolution. II. FOREIGN LAW AND LOCAL BAR RULES The first step in litigating foreign aviation cases is to adequately research any relevant foreign country’s aviation law. Such foreign countries would include the place of accident, the decedent/injured and his or her family’s place of residence, and the manufacturers and maintenance providers’ location(s). The inquiry should include local bar rules and any other requirements applicable to attorneys in the forum country. For instance, it is particularly important in foreign aviation cases to determine who has the requisite authority to retain an attorney on behalf of a decedent’s estate, beneficiaries, or injured minor(s). In Florida, for example, the personal representative of the decedent’s estate has the sole authority to retain an attorney to bring any and all claims on behalf of the decedent’s estate. This person is usually the spouse, parent, or adult child of the decedent. In many other countries, however, the scope of retention authority is far broader. In some foreign jurisdictions, any person who received financial support from the decedent is authorized, and within his or her legal right, to retain an attorney and institute a suit on behalf of the decedent. Further, in certain countries, each Beneficiary has her own claims * A partner at the law firm of Podhurst Orseck, P.A. in Miami, Florida. Special thanks to Joshua E. Rasco of Podhurst Orseck for his assistance in writing this Article; the FIU Law Review staff for its editorial contributions; and Dean R. Alexander Acosta for hosting the Aviation and Space Law Symposium. 11 - MARKS_FINAL_1.4.DOCX (DO NOT DELETE) 3/1/16 2:52 PM 572 FIU Law Review [Vol. 10:571 for an individual cause of action and must individually bring those claims. It is imperative that all of the correct and proper parties sign the attorney’s retainer agreement, or the agreement may later be determined invalid. III. FOREIGN ACCIDENT INVESTIGATIONS Another crucial aspect of any foreign aviation case is the accident investigation. Aviation practitioners on the plaintiffs’ side begin almost every case at an informational disadvantage. Unlike most other fields of civil litigation, interested parties such as aircraft and component manufacturers are called upon to assist government investigators in determining the cause of the crash. The government agency leading the investigation often relies upon and incorporates the findings and conclusions of the participating interested parties into its final report. Aviation practitioners must be vigilant when analyzing these final reports to ensure that a full and thorough investigation was completed. This is especially true with most commercial aviation disasters, which are widely publicized, and the theories and findings of the investigation teams can “poison the well” of public perception, or worse yet, that of the aviation practitioner. The best way to overcome these disadvantages is to immediately begin your own, independent investigation into the cause of the crash. Generally, the victims and their representatives are not allowed to participate in the official accident investigation, or allowed access to the wreckage site or crucial maintenance records. As such, it is important to remain mindful of the parties involved in the official accident investigation, as well as their possible motives, so as to not prematurely discount any single theory and remain vigilant of spurious theories. A. Who May Participate in the Official Accident Investigation? The accident investigation of any foreign aviation disaster is generally governed by the International Standards and Recommended Practices (SARPs) published by the International Civil Aviation Organization (ICAO).1 ICAO’s accident investigation protocol2 (or “Annex 13”) requires 1 ICAO is a specialized agency of the United Nations that was established upon the signing of the Convention on International Civil Aviation, Convention on International Civil Aviation, Dec. 7, 1944–Feb. 28, 1945, 61 Stat. 1180, 15 U.N.T.S 295 [hereinafter Chicago Convention], and currently has 191 signatory Member States. ICAO was created to aid the global aviation community in establishing uniform industry standards and practices. About ICAO, INT’L CIVIL AVIATION ORG., http://www.icao.int/about-icao/Pages/default.aspx (last visited Dec. 4, 2014). 2 Annex 13 to the Chicago Convention sets forth the SARPs for Aircraft Accident and Incident Investigation. Aircraft Accident and Incident Investigation, Chicago Convention on International Civil Aviation, Annex 13 (10th ed. 2010). 11 - MARKS_FINAL_1.4.DOCX (DO NOT DELETE) 3/1/16 2:52 PM 2015] Uncovering the Truth in Foreign Aviation Disasters 573 that the state of occurrence3 initiate an accident investigation and secure the wreckage site.4 The state heading the investigation may delegate the whole, or any part, of the investigation to other entities, such as manufacturers, airline and maintenance companies, and many other potentially-interested parties.5 An aviation practitioner should be wary that a participating interested party’s perception may be skewed by their belief in their product. In some cases, interested parties may go so far as to intentionally attempt to destroy or alter the evidence through disassembly or destructive testing.6 B. Rely on Your Experts to Determine the Cause of the Crash Long before any theory of the official investigation becomes part of the investigative authority’s final report, your team of experts should have already developed their own theories into the cause of crash. This task is, of course, easier said than done. Experts in the field of aviation are interdependent by nature. For example, an aerodynamics expert will undoubtedly rely on the conclusions of the meteorology expert. Similarly, an accident reconstruction expert will likely rely on the aerodynamics expert, meteorology expert, and human factors expert, just to name a few. This process requires considerable expense, diligence, and most importantly, the ability to review the final report of the investigating authority—and the evidence—impartially. The 1997 SilkAir disaster is illustrative of this point. i. 1997 SilkAir Disaster On December 19, 1997, SilkAir flight MI185 from Jakarta, Indonesia, to Singapore, crashed into the Musi River in southern Sumatra, killing all 104 occupants aboard the plane.7 Because Indonesia was the state of occurrence, Indonesia’s National Transportation Safety Committee (NTSC) led the investigation.8 Other participants in the investigation included the U.S. National Transportation Safety Board (NTSB), the Australian Transport Safety Bureau (ATSB),9 and expert teams from manufacturers 3 Under Annex 13, the State of Occurrence is simply the country or territory in which the crash occurred. Chicago Convention, supra note 1, at 1–3. 4 Chicago Convention, supra note 1, at ¶ 3.2. 5 Id. at ¶¶ 5.1, 5.23–5.26. 6 See, e.g., Silk Air Flight MI 185, NAT’L TRANSP. SAFETY COMM. REV. REP. § 1.16.1 (2001) [hereinafter N.T.S.C]. 7 N.T.S.C., supra note 6, at § 1.1. 8 Under Annex 13, Indonesia was responsible for leading the investigation and securing the crash site. Chicago Convention on International Civil Aviation, supra note 3, at 5–1, ¶ 5.1; see N.T.S.C., supra note 6, at § 1.1. 9 At the time of the investigation, the ATSB was known as the Australian Bureau of Air Safety Investigation or BASI. This paper refers to the organization by its current name, the ATSB. 11 - MARKS_FINAL_1.4.DOCX (DO NOT DELETE) 3/1/16 2:52 PM 574 FIU Law Review [Vol. 10:571 such as the Boeing Company and General Electric.10 Captain Tsu Way Ming was the pilot-in-command of the Boeing 737- 36N.11 Only a few minutes after the plane reached its planned cruising altitude of 35,000 feet, the cockpit voice recorder (CVR) ceased recording.12 The air traffic controller instructed the aircraft that it was abeam Palembang, Indonesia, which the crew acknowledged in its final communication.13 According to the final report, the flight data recorder (FDR) stopped working just a few minutes after the CVR stopped recording.14 Seconds later, the aircraft began a precipitous nose-dive into the Musi River, where it ultimately crashed.15 a. The Controversy This SilkAir disaster is one of the most controversial commercial airline crashes in recent history.